2016 Elections: a tipping point for cannabis legalization?

On November 4th, during a Bill Maher interview with President Obama, Obama acknowledged that federal prohibition could begin to crumble if the five states voting on cannabis legalization for personal use approved the initiatives. In his words “The good news is that after this referenda, to some degree it’s going to call the question. Because if in fact it passed in all these states, you’ll now have a fifth of the country that’s operating under one set of laws and four-fifths in another. The Justice Department, DEA, FBI, for them to try to straddle and figure out how they’re supposed to enforce laws in some places and not in others, they’re going to guard against transporting these drugs across state lines – you’ve got the entire Pacific Corridor where this is legal. That is not going to be tenable.”

Now, although Arizona’s initiative failed to pass by a small margin, the other four states—California, Maine, Massachusetts and Nevada—approved ballot initiatives legalizing and regulating cannabis for adult use. With these four states added to the existing four plus the District of Colombia, there are now approximately 69 million Americans that are residents of jurisdictions where recreational cannabis is legal; that’s 1 in 5 Americans. This is a significant rise from the 18 million who had access before the November 8th vote.

Additionally, another three states—Arkansas, Florida and North Dakota—voted to approve the use of cannabis for medical purposes, while Montana voters approved an initiative to broaden access under their state’s existing medical marijuana law. As seen in the map above, there are now 28 states (and the District of Colombia) that have legalized medical cannabis, making them the majority.

Can a Trump administration change the game?

Even though these 28 states have legalized medical cannabis and now eight states have legalized for personal use, the fact of the matter is that cannabis is still a Schedule I drug, making possession, sales and even research, illegal under the federal Controlled Substances Act. The only reason that state’s have been able to carry out their legalization experiments is due to the Obama administration’s decision to relax its policy on the prosecution of cannabis related crimes. This was done primarily through two federal mandates: the Hinchey-Rohrabacher medical marijuana amendment and the Department of Justice (DOJ) Ogden and Cole Memorandums.

The Hinchey-Rohrabacher amendment is a piece of congressional legislation that prohibits the DOJ from spending federal dollars to enforce federal prohibition in states that have moved to decriminalize or legalize medical marijuana. The 2009 Ogden Memo (then extended in 2011 and 2013 with the Cole Memo) released by the DOJ states that the federal government will not interfere with states that legalize recreational and medical marijuana so long as they follow a series of guidelines. It conditions prosecution efforts to focus on certain “high risk” activities, such as sales to youth or sales outside state lines.

President-elect Trump is not required to continue these commitments. Under his administration, the Cole Memorandum could be eroded or even completely overturned entirely. He, along with his pick for attorney general, could decide to begin enforcing federal marijuana laws in states that have voted to legalize (provided the Republican-controlled Congress provides funding), in which case the legalization train would be quickly brought to a halt. What he will decide to do is still largely a question mark at this point.

Like most things he talks about, Trump’s views on cannabis have been largely inconsistent. About a year ago, Trump relaxed his stance on cannabis legalization at rally in Nevada. “In terms of marijuana and legalization, I think that should be a state issue, state-by-state.” But Trump has made multiple statements before and after his speech in Nevada contradicting this. More recently, he said he opposes legalizing and regulating marijuana for adult use. However, soon after he also stated that he does supports legal access to medical marijuana, and he believes states should be able to set their own marijuana policies with regard to adult use.

Depending on whom he taps for Attorney General this could all change. His Vice President Mike Pence is strongly against legalizing cannabis and other possible collaborators and Attorney General candidates, like Chris Christie or former New York City Mayor, Rudy Giuliani, are both firmly against rescheduling or legalizing cannabis. They are both strong believers in harsh criminal justice policies, which would deviate from the current administration.

Why California could be the game-changer?

The more states to legalize cannabis, however, the less likely it seems that the federal government will try to fight back. Regardless of Trump’s position, the federal government now has more pressure to solve the state-versus-federal conflicts that arise from state legalization. With California now in the game, the federal government cannot continue with their current stance. California is not only one of the biggest states in the country, with 12% of the population, as well as the world’s sixth largest economy, but it also completes the entire West Coast map of legalization. With Washington, Oregon and California all having approved legalization, legal cannabis is now sharing a border with both Canada and Mexico.

The U.S. has traditionally been the biggest proponent and supporter of the current prohibitionist drug regime, pressuring countries like Mexico to successfully tackle drug production and trafficking. During the war on drugs, the U.S. and Mexico have been faced with the paradigm “drugs go north, guns go south”. But will this still be the case? The U.S. government will have a growing responsibility internationally. With California legalizing, we will now face a huge contradiction where on one side of the border you are arresting individuals for minor cannabis possession while on the other side it is being sold legally.

What do these new initiatives mean?

The map is quickly changing and there is ever-growing momentum. National opinion surveys find that 55-60% of Americans favor legalization, the highest it has ever been. Support is also changing geographically. After the November 8th elections, Maine and Massachusetts became the first Northeastern states to legalize while Arkansas and Florida became the first Southern states to approve robust medical access laws. This means neighboring states will be keeping a close eye on the results. If they are satisfied with the result, adult use will more easily spread throughout the region. It is doubtful that states like Rhode Island, New Hampshire or Connecticut will want to see all the related tax revenue go to Massachusetts exclusively, if they can pass similar initiatives. The same will happen in the south. Arkansas is now one of the first deep south states to approve medical marijuana and could set off a domino effect to the surrounding states.

However, we won’t be seeing any big changes anytime soon nor should people be lining up to buy tickets to San Francisco or Boston. We must remember that although Colorado and Washington passed ballot initiatives in November 2012, the first stores didn’t open until January 2014 In Colorado and even later in Washington. Oregon and Alaska approved their initiatives in November 2014 and it was only on Friday that the Oregon Liquor Control Commission announced it has approved licenses for 26 retailers around the state, while the first shop to open in Alaska opened on October 29th. Massachusetts, California and Nevada won’t see retail stores open till early 2018. Meanwhile, Maine has nine months to develop regulations for licensing recreational marijuana dispensaries and “marijuana social clubs,” delaying retailers possibly for years. However, even though there will be a long wait for these new state’s to be up and running we are getting more information every day from Colorado and Washington, and soon we will be adding stats from Oregon and Alaska. All this will give us a clearer picture of what is working and what still needs some fine-tuning.

Stay tuned…

Stay tuned for more on these new initiatives and the initial impressions of Oregon and Alaska’s roll out. My next blog in a couple of weeks will feature a detailed explanation on the seven new initiatives as well as some of the public health pros and cons that they include.

Stay Informed

The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.